In re Basciano

Decision Date17 September 2008
Docket NumberDocket No. 08-2157-op.
PartiesIn re Vincent BASCIANO, Petitioner.
CourtU.S. Court of Appeals — Second Circuit

Jane Simkin Smith (Ephraim Savitt, Richard Jasper, Ying Stafford, New York, NY, of counsel), Millbrook, NY, for Petitioner.

John Buretta, Assistant United States Attorney (Benton J. Campbell, United States Attorney for the Eastern District of New York, Peter A. Norling, Amy Busa, Winston Chan, Assistant United States Attorneys, of counsel), Brooklyn, NY, for Respondent United States.

Before: KEARSE, LEVAL, and SACK, Circuit Judges.

SACK, Circuit Judge:

Petitioner Vincent Basciano petitions for a writ of mandamus requiring Judge Nicholas G. Garaufis of the United States District Court for the Eastern District of New York to recuse himself from presiding over Basciano's impending capital trial. In an order dated June 11, 2008, we denied Basciano's petition, stating that an opinion would follow. This is that opinion.

BACKGROUND

Basciano, allegedly a highly placed member of the Bonanno crime family, see United States v. Basciano, 369 F.Supp.2d 344, 351 (E.D.N.Y.2005) (Garaufis, J.) ("Basciano"), was originally indicted on August 14, 2003 for various racketeering-related offenses. Following several superseding indictments and two trials on these indictments in 2006 and 2007, Basciano was found guilty of charges in each. On March 31, 2008, he was sentenced to life imprisonment. See Judgment as to Vincent Basciano, United States v. Massino, No. 03-cr-0929 (E.D.N.Y. Apr. 8, 2008).

In January 2005, while awaiting trial, Basciano was placed in the Special Housing Unit ("SHU") at the Metropolitan Detention Center ("MDC") in Brooklyn. Basciano v. Lindsay, 530 F.Supp.2d 435, 438 (E.D.N.Y.2008) (Garaufis, J.) ("Lindsay"). In a separate indictment returned shortly thereafter, on January 26, 2005, Basciano was charged with, among other things, Murder in Aid of Racketeering, 18 U.S.C. §§ 1959(a)(1)-(2), 3551 et seq., based on the 2004 death of Randolph Pizzolo. See Indictment, United States v. Basciano, No. 05-cr-060 (E.D.N.Y. Jan. 26, 2005). The indictment alleges that Basciano conspired to murder the Assistant United States Attorney, Greg Andres, who had been the lead prosecutor in the earlier cases. See Lindsay, 530 F.Supp.2d at 438. The government has stated its intent to seek the death penalty on these still-pending charges. See Letter Regarding Attorney General's Death Penalty Decision, Basciano, No. 05-cr-060 (E.D.N.Y. Apr. 2, 2007). It is trial on these charges for which Basciano has sought to have Judge Garaufis recuse himself.

Two months after this indictment was filed, in March 2005, Basciano was moved from the MDC to Unit 10 South1 at the Metropolitan Correctional Center ("MCC") in Manhattan. See Lindsay, 530 F.Supp.2d at 438.

While housed in Unit 10 South, Basciano's contact with visitors, including his attorneys, was sharply curtailed based on the Government's contention that the conditions were necessary to prevent Basciano from directing the affairs of the Bonanno crime family from prison, including ordering acts of violence. Specifically, the Government argued that, in addition to his involvement in the plot to kill Andres, Basciano had ordered the Pizzolo murder from the MDC.

Id. (citations omitted).

In May 2005, however, the district court "f[ound] that Basciano's detention in the SHU [was] not reasonably related to the government's legitimate objective of curtailing [his] alleged criminal activities, and that less restrictive means of doing so [were] available to the government." Basciano, 369 F.Supp.2d at 353. Basciano was therefore released by order of the district court into the general prison population of the MCC subject to "such restrictions as the government deem[ed] necessary to prevent him from communicating with other Bonnano family members and associates." Id.2

In July 2006, however, Basciano was transferred by the Bureau of Prisons from the general prisoner population at the MCC back to Unit 10 South. At the end of the following month, the government disclosed to the district court, under seal, the reasons for the transfer.

In its sealed filing, the government asserted that in April or May 2006, Basciano had composed a handwritten list with the names of Judge Garaufis, Assistant United States Attorney Andres, and three cooperating witnesses who had testified at trial. According to the government, Basciano gave this list to another inmate and indicated that he wanted to have the listed individuals murdered. The second inmate took no further action regarding the list, however, and eventually turned it over to the government on June 30, 2006.

The government later produced a transcript of a telephone conversation between Basciano and his wife, which the government had intercepted on June 8, 2006. It took place sometime after the putative "hit list" had been prepared and delivered, but before it had been disclosed to the government by the inmate recipient. The transcript reads, in part:

Basciano: I'm going to try to get a different judge. I'm gonna see if I can get a different judge.... [H]e's just so predisposed because the government brought in so many witnesses. [The government] can't handle the fact that I might get acquitted.... [T]hey brought in so many witnesses and spent so much money. I have to pull all the rabbits out of my hat for this one.... I gotta pull all the rabbit[s], I have to fight the same way they fight, honey....

Angela Basciano: Try to get a different judge.

Basciano: Yeah, well I don't know if it's going to be possible. But I thought this judge was okay.... Al[l] right listen to me, I'm pulling every rabbit out of the hat, and, uh, I gotta fight fire with fire with these people.

Angela Basciano: Yeah, well that's what you've got to do.

Exhibit B to Memorandum of Law in Opposition to the Motions To Recuse by Defendants, Basciano, Nos. 03-cr-0929, 05-cr-0060 (E.D.N.Y. Nov. 1, 2006).

Basciano disputed the government's characterization of the list. At a status conference held August 28, 2006, he contended that it was created for use in a Santeria ritual3 that required the list to be placed in his right shoe and stomped on five times per day during the course of trial. Basciano requested an evidentiary hearing regarding the nature of the list. The district court denied the request.4

On September 21, 2006, the government informed Basciano and his counsel that it had received authorization from the Attorney General to impose stringent Special Administrative Measures ("SAMs") on Basciano. See Lindsay, 530 F.Supp.2d at 439. Federal regulations provide that the Bureau of Prisons may implement SAMs, "[u]pon direction of the Attorney General," when "reasonably necessary to protect persons against the risk of death or serious bodily injury." 28 C.F.R. § 501.3(a).

On January 30, 2007, Basciano filed a habeas corpus petition pursuant to 28 U.S.C. § 2241 challenging his transfer back to the SHU and the imposition of the SAMs. The district court denied the petition in 2008, making no finding as to whether Basciano's list was a "hit list." The court found sufficient evidence, independent of the list, of "Basciano's dangerousness to justify the Government's safety concerns" underlying the government's decision both to impose the SAMs and to assign Basciano to the SHU.5 Lindsay, 530 F.Supp.2d at 447.

Recusal Motions

In the meantime, in October 2006, Basciano filed a motion requesting that Judge Garaufis recuse himself from presiding over Basciano's capital case. See Motion for Recusal, Basciano, No. 05-cr-0060 (E.D.N.Y. Oct. 31, 2006) (the "2006 Motion"). He renewed this motion in June 2007, in connection with his habeas petition, and again in February 2008, following the government's notice that it intended to introduce Basciano's list of names during a potential penalty phase of trial, and that it might also introduce the list as evidence during the guilt phase, see Motion for Hearing or Alternately for Recusal of the Court, Basciano, No. 05-cr-0060 (E.D.N.Y. Feb. 12, 2008) (the "2008 Motion").

The district court denied all of these motions. In an order dated November 30, 2006, responding to the 2006 Motion, the court determined that recusal under 28 U.S.C. § 455(a), which provides that "[a]ny ... [federal] judge ... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," was not warranted. United States v. Basciano, Nos. 03-cr-929, 05-cr-060, 2006 WL 3483924, at *1-*2, 2006 U.S. Dist. LEXIS 86533, at *5 (E.D.N.Y. Nov.30, 2006) (Garaufis, J.). Observing that Basciano was a "sophisticated party" as evidenced by his regular replacement of counsel, and that the first recusal motion followed both his racketeering conviction and statement to his wife about seeking a "different judge," id. at *2, 2006 U.S. Dist. LEXIS 86533, at *5-*6 (internal quotation marks omitted), the district court found that Basciano had sought to "engineer" the judge's recusal, id. at *2, 2006 U.S. Dist. LEXIS 86533, at *6 (internal quotation marks omitted). In the absence of actual bias manifested by the court, the court concluded that a reasonable person "would not reasonably question th[e] court's impartiality." Id. at *2, 2006 U.S. Dist. LEXIS 86533, at *7.

In a memorandum and order dated March 24, 2008, responding to a motion for a new trial, the district judge reaffirmed his decision not to recuse himself and added that neither that decision nor his denial of habeas relief created "an appearance of partiality sufficient to call into question the fairness of Basciano's retrial." United States v. Basciano, No. 03-CR-0929, 2008 WL 794945, at *10, 2008 U.S. Dist. LEXIS 23107, at *36 (E.D.N.Y. Mar. 24, 2008) (Garaufis, J.). The court noted that the defendant had pointed to decisions adverse to him, but had failed to identify any pattern of actions by the court that would...

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